Judges hearing Republican Norm Coleman's U.S. Senate election contest will consider a request Friday afternoon by Coleman to stop state officials from redacting voter information from the envelopes of 933 counted absentee ballots.
Doing so would allow the Coleman campaign to challenge absentee ballots that were counted by the State Canvassing Board in the statewide recount that gave Democrat Al Franken a 225-vote lead in the highly contested race.
In a midday press conference, Coleman's attorney Ben Ginsberg said his camp still agrees that all of the already-counted absentee ballots should be included in the count. But he said they filed the motion for an injunction as a way for the court to resolve how to handle about 100-already-counted ballots that could now be considered illegal after a ruling by the court last week.
"We are not trying to pull back anything," Ginsberg said. "But the court's order of February 13 creates this problem of them saying there are now illegal votes among the Canvassing Board ballots."
Deputy Secretary of State Jim Gelbmann said his office has already redacted "about half" of the 933 ballots in question.
"The court ordered us to redact the numbers and both candidates agreed that they were not going to contest the counting of the 933 ballots," he said. "So what we did was basically took a sharpie marker and scribbled over the red ink on the ballots and the envelope."
Gelbmann said it would be very difficult to match the ballot envelopes with the ballots on the batch that has already been redacted. He said the office stopped redacting the information on the remaining ballots until the court decides what to do next.
Ginsberg acknowledged that his camp's request for an injunction may very be "moot" since the information regarding some ballots has already been redacted.
At the center of the problem, Ginsberg said, is the judges' order that narrowed the ballot categories in question. Ginsberg said the panel created the problem for itself with last Friday's ruling.
"At the end of the day, this court will face what is a conundrum of having to certify the number of legally cast votes for each candidate, while receiving evidence ... that, in fact, there are illegal votes, by their definition, included in the counts they're going to have to certify as legal votes," Ginsberg said.
Franken attorney Marc Elias said the request for an injunction is proof that Coleman's attorneys have reversed their arguments -- from wanting to count every vote, to asking not to count certain votes.
"I think today we stand on the edge of perhaps that argument being made," Elias said. "If not for that, it's not clear why they would want to undo voter privacy."
Throughout the trial, Coleman's legal team has tried to show that election officials in different areas created a systematic problem by counting similar ballots differently, and therefore more ballots should be counted. Coleman is trying to get about 3,000 rejected absentee ballots counted in an effort to overcome Franken's lead.
Elias said because the Coleman camp voluntarily agreed to the counting the 993 votes, they have "no legal basis" for asking the secretary of state's office to now stop redacting absentee ballot envelopes.
The three judges -- Elizabeth Hayden, Kurt Marben and Denise Reilly -- have not made any comments outside of court since the trial began nearly a month ago.